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The Next Civil Liberties Fight Could Be Over Breathalyzers

A college student gets pulled over by police on a Saturday. It’s Game Day, so local police have set up DUI checkpoints to keep drunk drivers off the road. The police officer says he saw the car swerve in the lane and asks the student to take a breathalyzer test.

The student says he only had a couple of beers after the game. He’s arrested, but not convicted because the test showed his blood alcohol content was below the legal limit. But the school got wind of his arrest, and now his degree is held up and future on hold — all because of a faulty breathalyzer machine.

This hypothetical is a surprisingly common occurrence. Simply getting arrested for suspected drunken driving could have lasting effects on people’s lives including job loss, school suspension, and damaged reputations.

“I’m representing somebody right now who’s having all types of problems and will probably not result in a conviction,” Ohio defense attorney Jon Saia told ThinkProgress. “A lot of times [drivers] can lose their job just for being arrested.”

Drunken drivers are a major public safety concern, causing more than 30 percent of car-related crash deaths every year, according to the Centers for Disease Control (CDC). Breathalyzers are routinely given by police officers to get impaired drivers off the road. But there’s growing concern the most vital tool used to identify and punish drunken drivers is flawed, and as a result, could be violating drivers’ civil liberties.

Breathalyzers have been steeped in controversy in recent years as state courts continually wrestle over whether breath tests are scientifically and operationally sound.

DUI cases are determined in two ways: whether a driver is considered legally drunk based on breathalyzer-measured blood alcohol content, and whether the driver seems impaired.

Suspected drunken drivers are usually given two breath tests: one by the police officer at the scene and another at a designated testing location such as a local precinct. The roadside test is only “to give the officer an indication” of a driver’s intoxication, Britta Demello Rice, a prosecutor for North Dakota’s Burleigh County, told ThinkProgress. Even though “it’s usually not that far off, it’s not admissible in court.”

But there are states where drivers can be convicted of DUIs even for blowing under the legal limit, as long as the officer testifies he or she was acting intoxicated, said David Hanson, PhD., a sociology professor who researches alcohol and drinking for the State University of New York at Potsdam.

Breath tests are used to assess whether a driver has too much alcohol in his or her system, but that level varies from state to state. States now all use a .08 percent blood alcohol content reading as the legal intoxication limit, but there have been cases where drivers are arrested for blowing much lower than the legal limit, Maryland DUI attorney Bruce Robinson wrote. There’s even a push to lower the limit to .05 percent.

Almost 30 people in the United States die daily from motor vehicle crashes that involve alcohol-impaired drivers, according to the CDC. One-hundred twelve million drivers report driving under the influence each year, and, in 2010, nearly 1.4 million drivers were arrested for alcohol or narcotics-related DUIs.

But while the numbers of these preventable deaths are devastating, Hanson contends, “a very small percent of the population is responsible for drunken driving deaths.” Legally-impaired drivers with at least 0.08 percent BAC that are in a fatal crash are seven times more likely to have a prior DWI conviction than drivers without alcohol in their system. Moreover, alcohol has been shown to affect fine-tuned motor skills even the morning after drinking.

Law enforcement has a duty to keep the public safe and pull impaired drivers off the road. But officers must also walk the delicate line of being vigilant and going after the wrong person.

* * *

Faulty breath tests have opened the door for hundreds of DUI cases to be thrown out across the country. Because of faulty breathalyzers in Washington DC, as many as 400 people may have been wrongly convicted for drunk driving in 2010, according to the District Attorney General’s office. Of those 400, only 50 people challenged their cases in court. The district ended up paying out around $400,000 in legal settlements. In California, thousands of cases were thrown into confusion because of defective breathalyzers; Ventura County in southern California ended up dismissing at least 64 cases because of a glitch.

The main culprit in multiple jurisdictions was the Intoxylizer, particularly the 8000 model. State Supreme Courts in Ohio and Oklahoma recently found the machines in use were unreliable. The machine was known to report blood alcohol levels that are physically impossible to achieve, Saia said. Similar doubts were raised with the Intoxilyzer 5000, which was at the heart of DC’s breathalyzer scandal. Intoxilyzers are used in more than 35 states. ThinkProgress was unable to get further clarification from Intoxilyzer on its products and distribution.

During his research, Hanson found the chief issues with breath tests are false readings and a lack of universal standards because they affect the tests’ reliability and validity.

“First of all, it’s a machine — there are mechanical and electrical problems that can occur. They’re supposed to be tested periodically by someone who is competent to do so,” Hanson said. “Even still there’s a margin of error,” that can occur for a variety of reasons.

“There’s all sorts of interference and problems with the machines,” Hanson said. For example, the machine can even register a higher BAC reading if there are radio frequencies in the air, such as the ones emitted from police scanners and walkie-talkies.

Moreover, there are myriad health and environmental factors that could increase a person’s registered blood alcohol level, Hanson said. “If you look at the individual, there could be a number of medical conditions that can cause a false positive: diabetics, people who are fasting, if someone was smoking, even time of day even can create problems. The body naturally produces alcohol, ethanol in the gut.”

Diabetics or people with low blood sugar tend to have a higher concentration of acetone in their breath, which can not only produce a false positive but make them seem disoriented, like they’ve been drinking.

Breathalyzers can also be fooled by a number of common household substances. A study out of the Academy of Emergency Medicine found that alcohol-based hand sanitizer could alter breathalyzer readings. Seventy-five participants used hand-sanitizer, which resulted in false positive breath test readings. The more hand sanitizer used as well as not letting it dry first created bigger discrepancies with even higher false BAC results. Even windshield wiper fluid, which is ethanol-based, has been linked to falsely elevated BAC levels.

Fifty percent to 75 percent of convicted drunken drivers get back on the road even after their license has been suspended, Mothers Against Drunk Driving (MADD) cites on its website. Moreover, drivers have been intoxicated behind the wheel approximately 80 times before they are ever arrested.

Another issue is how some states administer the test. “Some [states] don’t require two separate readings, [making] the results of a single reading is unclear because there’s no comparison, Hanson said. Depending on the driver’s behavior and results of the roadside test, which aren’t admissible in court, police can arrest and search the car.

“Whether it’s a lawful arrest or not, you need to have probable cause,” said Silas Wasserstrom, Georgetown University criminal procedure law professor in Washington, D.C. “Is the breathalyzer result enough to give probable cause? I would argue that most courts would say it is. Unless the equipment is completely inaccurate and faulty.”

* * *

Retired Wyoming State Patrol lieutenant Carl McDonald disagrees with these claims, saying none of the challenges mentioned above and used by defense attorneys have been successful.

“It’s based on a very exact science,” said McDonald, who is also the law enforcement initiatives manager for Mothers Against Drunk Driving (MADD). “Where [breathalyzer testing] has gone south is in certain jurisdictions, like the District of Columbia, because they mismanaged their program. They weren’t calibrating their instruments on the periodic basis. Faulty at keeping track of their stuff.”

In 2011, the Metropolitan Police Department in Washington, D.C., suspended its breathalyzer program after an investigation found the machines used gave inaccurate results. From 2008 to 2010, 400 drivers were convicted of driving under intoxication based on the faulty machines. Half of those who were convicted served jail time. The city brought back breathalyzers in 2012 with new safeguards to make sure the machines are tested properly.

There currently aren’t federal guidelines police use to maintain or administer breathalyzer tests, and it’s “all done by state law and state policy,” McDonald said. At best, the device manufacturers have guidelines but it’s up to the state to carry them out.

Many jurisdictions, like Texas, rely on blood testing as opposed to breathalyzers. “Blood is known as the gold standard of chemical testing. The negative side of drawing blood is that the results are not immediate. It’s not the least expensive, most efficient way. Breathalyzers are,” McDonald said. “The big advantage is that you can run a lot of people through in a night,” but the results are more easily challenged in court.

Police can’t force drivers to submit to a blood or breath test, but can draw blood under exigent circumstances because alcohol quickly dissipates in the body. That is, if a driver is hospitalized after a car crash, or if there’s evidence that a violent crime was committed under intoxication, McDonald said.

In most cases, police give drivers an option depending on state law. But some states, like Missouri and North Dakota, penalize drivers who refuse to submit to alcohol tests. So drivers can either take the test or risk up to the same jail time as a DUI conviction, license suspension or a fine.

According to the NHTSA, 22 percent of suspected drunk drivers refused breath tests in 2005. Since then, refusal rates have dropped in 11 states and increased in 12 others, with refusals averaging between 19 percent and 25 percent. States such as Florida and New Hampshire had the highest rates, at 82 percent and 72 percent respectively.

“When you drive down the refusals, you have a lot less challenges. It makes for better justice,” McDonald said. Of those arrested, only drivers who are repeat offenders or who have a high content of drugs in their system refuse to be blood tested, he said.

North Dakota’s Supreme Court recently dismissed a case that could have made it unconstitutional to charge motorists for refusing to take breathalyzer tests, potentially reducing the ramifications of a false DUI arrest.

“We get a ton of DUI arrests a day, many of which are [for test] refusals,” North Dakota prosecutor Britta Demello Rice said. Under state law, “we could charge someone for refusing the road breath test, in our area.”

* * *

Ohio defense attorney Jon Saia believes that about one in three DUI arrests and convictions are hinged on bad breath test results, and trying to fight it and protect people’s civil rights is a legal and cultural challenge.

“DUI has [its] own sets of interpretations of the Constitution,” Saia said. “It’s just a whole different body of law that doesn’t apply in other cases.”

For example, road checks where police stop motorists and question them about their drinking activity are allowed, while in most other circumstances an indiscriminate stop would be considered a violation of an individual’s civil liberties. “I’m not sure of any type of case where that would be allowed. We don’t do that if there’s a murderer on the loose,” Saia said.

“When you’re arrested for a DUI in most places, you don’t automatically have the right to an attorney if you’re asked to take a test,” Saia said. “Police officers are allowed to just suspend your license… There’s extra punishment for refusing a blood test. For exercising your right to not incriminate yourself, you’re punished for that with extra jail time.”

Based on the law, police can still pull over a driver for impaired driving based on an anonymous tip even if the suspected driver isn’t swerving or otherwise driving recklessly. That Supreme Court decision, which narrowly passed 5-4 in April, further illustrated some of the deep-seated tensions when it comes to DUIs.

Justice Scalia criticized the decision, calling it a “freedom-destroying cocktail” because it assumes information from anonymous 911 calls is reliable and that a single act of temporary recklessness determines foul play.

“Forty years ago [the Court] said [police] didn’t need a warrant because it took too long, but with email, et cetera, you can get them quickly,” Saia said.

But for the most part, the Supreme Court has largely stayed away from breathalyzers, letting states decide how to best handle testing. The Court ruled that law enforcement couldn’t force suspected drunk drivers to get blood drawn to prove intoxication without a warrant except under exigent circumstances, such as in a car crash with victims or in connection to another crime. The Court also decided that drivers could only challenge the validity of a breathalyzer machine, not the supporting science.

The legal argument is that drivers implied consent when they got a license, and submitting to a breathalyzer is a reasonable request under the Fourth Amendment. “The minute you get on the road, you consent. You can withdraw consent by refusing the test, we won’t force you,” Demello Rice said.

* * *

The law is undergoing a sea change in response to public pressure for greater protections from government and police intrusion into their personal lives. Public distrust of police has continued to swell in recent years as controversial policies, such as stop and frisk, have made headlines for being discriminatory or violating basic privacy rights. The debate over civil liberties and police has not yet touched on the use of breathalyzer and DUI law, even though these tools have so much potential for abuse.

Stop-and-frisk policies, which allow police to stop and search people who they deem suspicious, have attracted harsh scrutiny in recent years. Coupled with the increase in police militarization exemplified by the Ferguson, Missouri protests after unarmed teen Michael Brown was shot and killed by a police officer, the public is questioning how to police the police effectively.

Police stops disproportionately target people of color. Drivers of color are often pulled over for no apparent reason. An ACLU report detailed how police have long profiled black and Latino drivers due to a policy begun in the 1980s under President Ronald Reagan, which encouraged law enforcement to use minor traffic violations, like broken taillights, as an excuse to search vehicles for drugs and weapons. Washington Monthly found that black drivers are five times more likely to be pulled over for investigatory stops than white drivers. More recently, this strategy has targeted Latinos as states try to catch undocumented immigrants. In 2013, for example, Maryland resident Noe Parra Manrique was pulled over for a loose screw in his license plate and was reported to immigration for being undocumented. Breathalyzers could be just one more tool police can use to target non-white drivers.

“People have strong opinions on this,” Hanson said. Breath tests have an integral role in protecting the public from wanton drunk drivers who kill millions each year. But, he adds, “there’s the protecting of innocent people and the issue of the Fourth Amendment.”

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